Bill C-16 Infringes on Freedom of Expression, As It Should

Rights can intersect, overlap, and conflict in unexpected ways. It has always been this way, and it will continue to be a challenge as our values change and evolve over time. Protecting one person’s rights often means infringing on the rights of another.

This doesn’t mean the law is broken. It just takes work. The court has established a framework for determining when it’s acceptable for the law to infringe on the Canadian Charter of Rights and Freedoms, and a vast body of precedent on how to apply it in different cases.

Section 2(b) of the Charter protects the right to “freedom of thought, belief, opinion and expression, including freedom of the press and freedom of communication.” In other words, free speech. The law recognizes that freedom of expression is essential in a free and democratic society. But no Charter right is absolute, and s.2(b) is no exception.

We limit freedom of expression in various ways. For example, we recognize that maintaining public safety and order is more important than protecting one’s right to yell “fire” in a crowded theatre. In the landmark case of R. v. Keegstra, the court determined it was reasonable to limit one’s right to promote hatred against an identifiable group (the case involved a high teacher who was criminally charged for teaching his students racially prejudiced material.)

We have also come to agree, as a society, that it is important to protect vulnerable groups of people from discrimination and harassment. To that end, each province has human rights legislation that ensures people are not unfairly barred from opportunities in employment, housing, education, or business because of who they are.

There is also federal human rights legislation, which covers federally-regulated and inter-provincial industries like airports and the military.

On June 16th, the Senate passed Bill C-16, which adds gender identity and gender expression as protected grounds under the federal Canadian Human Rights Act. This addition is meant to protect individuals who are transgender, transsexual, or intersex, or whose gender identity or expression is different from their birth sex, from discrimination and harassment.

Bill C-16 has drawn controversy for limiting freedom of expression. In a particularly inflammatory editorial, Bruce Pardy of the National Post warns that under the new law, “failure to use a person’s pronoun of choice — “ze,” “zir,” “they” or any one of a multitude of other potential non-words — will land you in hot water with the commission. That, in turn, can lead to orders for correction, apology, Soviet-like “re-education,” fines and, in cases of continued non-compliance, incarceration for contempt of court.”

The commission to which he refers is the Ontario Human Rights Commission. To his credit, the Commission has in fact stated that refusing to refer to a transgender or gender non-conforming person’s chosen name and pronoun could constitute discrimination under the Code.

But his predictions are absurd. Ontario quietly added gender identity and gender expression to its human rights legislation four years ago. This has not caused a flood of human rights applications related to pronouns, nor has it resulted in the Commission brainwashing people.

Words incite action. It’s why we saw fit to ban hate propaganda, even when it does explicitly refer to physical violence. The choice to forego using a person’s chosen name or pronouns sends a deliberate message, attacking a person’s dignity in much the same way as a racial or homophobic slur.

Like provincial bills addressing this issue, Bill C-16 will likely receive royal assent and become law without consequence. It will not usher in a new era of censure.